348 PRIVATE LAW IN A CHANGING WORLD
structure of liability is concerned. But common-law systems apply
concepts that have no counterpart in other systems, even though
the factual patterns to which they are applied are universal.
Some of the strangest concepts derive from those doctrines
and remedies classied in common-law systems as equitable. Their
origins lie in the English Court of Chancer y, whose jurisdiction
is nowadays exercisable by all superior and most inferior cour ts
in common-law countries. It is here that we nd trusts, including
resulting and constructive trusts which have evolved as remedies,
as well as principles such as tracing that facilitate the identication
of the claimant’s rights when her property has been exchanged for
other property. These concepts were developed long before the
law of unjust enrichment was recognised as a discrete source of
obligation in common-law jurisdictions. Their role within that law
remains controversial. Disputes about the extent to which a rational
law of unjust enrichment can be constructed from its discrete
common-law and equitable components still resemble theological
debates in that they attract high priests, disciples, sceptics and the
The particular restitutionary life-form discussed in this paper
is the unjust enrichment claim for stolen property. The topic
is considered by Daniel Visser in chapter 11 of his magnum opus,
Unjustied Enrichment.2 The law is here concerned, as the author tells
us, with ‘enrichment by taking’, rather than ‘enrichment by giving’.3
Visser notes that the private law remedies for theft in South African
law are ‘located on the faultline between delict and enrichment.’4
Apart from the availability of a vindicatory remedy against the thief
in possession, the claimant may invoke various condictiones – the
condictio sine causa specialis, the actio ad exhibendum or the condictio
furtiva – depending on the circumstances of the case.
Common-law systems also suer from a confusion of aims as
to whether restitutionary remedies for theft are wrongs-based,
vindicate property rights, or reverse unjust enr ichment. But
whereas the principal question for South African law is to identify
the action to be brought against the thief or the receiver of stolen
property, common lawyers must undertake considerable (and, it
2 D Visser Unjustied Enrichment (2008) 652–73.
3 Visser (n 2) 652, citing K Reid ‘Unjustied enrichment and property law’
1994 Juridical Review 167, 171.
4 Visser (n 2) 660.
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